Review by Irish Human Rights and Equality Commission Confirms Inadequate Legal Cover for Travellers and Calls For Statutory Amendment of Section 19 of the Intoxicating Liquor Act
The Irish Traveller Movement welcome the review by the Irish Human Rights and Equality Commission and their request to the Minister for Children, Disability, Equality, Integration and Youth for statutory amendment to section 19 of the Intoxicating Liquor Act (‘section 19 ILA’) which would bring discrimination cases currently taken to the District Court to go to the Workplace Relations Commission WRC, where all other discrimination complaints are heard, and to ease the burden of proof and provide anonymity to claimants there.
The Irish Traveller Movement has advocated for a review of the Act since its introduction in 2003 due to concerns that it would cause significant barriers for Travellers challenging discrimination at the point of entry to bars, restaurants, nightclubs and premises serving alcohol who were then required to take cases to the District Court.
In the intervening years there was a significant decline in cases taken by Travellers where processes and procedures required in the District Court were onerous and adversarial in nature, there was a lack of understanding among judiciary of equality legislation, and bias in legal areas. Those obstacles acted as a deterrent for many who experienced discrimination in licensed services and court records showed there was a high rate of inadmissibility in determinations for Travellers such as:
Traveller related cases lodged Applications struck out, withdrawn or adjourned
2016 – 26 out of 28 27
2017 – 51 out of 52 50
2018 – 29 out of 50 49
2019 – 43 out of 45 36
Concerns were raised by Traveller organisations in 2003 when the amendment was made to the Act as it was not considered by review of the Equal Status Acts and widely felt the move took account of commercial and business interests which was interpreted as a discriminatory act in itself, given the impact for Travellers.
From 2005 – 2017 the two grounds most cited for complaint by both the Equality Authority and the WRC were on grounds of Travellers and Race. The grounds to take discrimination cases under the Equal Status Acts provided Travellers for the first-time an opportunity to vindicate rights in the situation of pervasive exclusion from licensed and other services and largely in the face of public apathy.
In 2017, 90% of Travellers said they had experienced discrimination and of these 53% from pub staff, 51% from hotel staff and 43% from staff of discos/clubs.
The Commission noted in the Review an extremely small number of cases resulted in an Order for compensation at the District Courts– with only 11 in total during the period of 2017-2019, with no closure orders being made. However, discrimination claims dealt with by the forerunner to the WRC, the Equality Tribunal, issued 20 decisions concerning licensed premises in 2001, 45 decisions in 2002, and 64 decisions in 2003, last available data.
The Irish Traveller Movement have assisted Travellers encountering difficulties for example a Traveller man in a rural town successful in a case taken to the Workplace Relations Commission following discrimination in a local Licensed Premises. The case was appealed to the District Court and held in the same town and where the presiding judge was also from a well-known licensee in the town. The man had concerns he would not get a fair hearing, would be visible in the proceedings which would impact on him personally in local settings and likely cause further discrimination, and would cause additional financial burden in legal representation needed to defend the appeal.
In advocating for change to European and International treaty bodies and to the Minister under the current review of the Equality Acts, the Irish Traveller Movement raised the specific concerns of premises circumventing the legislation in practice , with one case in 2019 of many noted where a Traveller woman whose daughter was due to marry booked a wedding venue for 150 guests which was cancelled with one week’s notice, with an apology that there had been an error resulting in a double booking. However, the family attest that on booking there was clarity across all of booking requirements, and deposit given well in advance. This is a consistent finding when hotels take a booking and discover later the person is a Traveller. The common loopholes used are a double booking, a mistake by the staff member taking the original booking and or non-availability at the venue on dates without evidence of proof of same, and often not to be the case when a non-Traveller applies for the same dates, by way of investigation of malpractice.
The lack of legal cover for Travellers under Section 19 cases has also been raised by legal bodies in Ireland such as the FLAC legal service and international human rights committees including most recently the Advisory Committee to the Framework Convention on National Minorites in 2018, who questioned “whether the current legal framework provides sufficient procedural guarantees vis-à-vis the requirements of Article 4” of the Convention recommending the State “change the existing procedure before the district courts” and similarly in 2019 The CERD (13) called for the State party “to take necessary steps to ensure that the discrimination in licensed premises is covered by the Equality Status Acts 2000 to 2018 and complaints thereon are dealt by the Workplace Relations Commission”.
The IHREC review concluded that section 19 of the Intoxicating Liquor Act impacted more on Traveller, Roma and disabled people than on other people and invoked for the first time (Section 30) of the IHREC Act 2014 which gives it the power to review any legislation that relates to the protection and promotion of human rights and equality.
IHREC Review available here
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